Law Times

October 31, 2016

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Law Times • OcTOber 31, 2016 Page 15 CASELAW Municipal Law ACTIONS AGAINST MUNICIPALITY Tenants were granted partial summary judgment on issue of liability Municipality engaged in pilot project for area where illegal rooming houses was concern. Project resulted in rooming houses passing acceptable stan- dards and operating legally. Project also had aim of reducing applicable tax rates so tax savings could be passed on to tenants via provisions of landlord and ten- ant legislation relating to rent re- duction based on tax reduction. Total of 33 rooming houses re- ceived significant tax reductions from 2004 to 2008. Affected ten- ants had statutory entitlement to rent reduction, but landlords never reduced rent. Tenants were not aware of tax reductions due to municipality's failure to no- tify them about tax reductions as required by landlord and ten- ant legislation. Particular tenant commenced class proceeding against municipality for damag- es for negligence. Tenant success- fully brought motion for partial summary judgment on issue of liability. Municipality appealed. Appeal dismissed. Motion judge was correct to locate duty of care in conf luence of municipality's statutory obligations and its in- volvement in project. Evidence about lengthy project, showed that at high staff level the mu- nicipality recognized particular economic and psychological vul- nerability of class members to in- creases in housing costs. Munici- pality knew its efforts to upgrade rooming house and bachelorette housing stock in area would negatively affect affordability of rental housing there. From its contacts with Tenants' Associa- tion and through conf lict reso- lution process leading to project, municipality knew intimately situations of class members and nature and extent of particular vulnerabilities, knew municipal- ity's actions would exacerbate vulnerabilities, knew that even modest rent relief would be espe- cially meaningful to class mem- bers, and ought to have known that vulnerable group would be especially hard hit by municipal- ity's failure to perform statutory notification duties. Williams v. Toronto (City) (Sep. 12, 2016, Ont. C.A., Rob- ert J. Sharpe J.A., P. Lauwers J.A., and B.W. Miller J.A., CA C61705) Decision at 262 A.C.W.S. (3d) 773 was affirmed. 270 A.C.W.S. (3d) 201. Professions PHYSICIANS AND SURGEONS Plaintiff did not established necessary elements of successful claim Plaintiff 's common-law spouse passed away after being diag- nosed with aggressive form of brain cancer. Plaintiff brought action alleging professional neg- ligence and lack of informed con- sent in relation to her treatment. Plaintiff asserted there was con- spiracy regarding drug result- ing in cover-up. Plaintiff sought further investigation by court at trial. Attorney for personal care did not agree with allegations made in action. Plaintiff was not attorney for personal care and was not present for purpose of discussing treatment recommen- dations and obtaining informed consent for treatments. Physician and hospital defendants brought motions for summary judgment dismissing medical malpractice claim on grounds there was no genuine issue for trial. Motions granted. Action was dismissed. There was no genuine issue for trial. Plaintiff did not establish negligence. Plaintiff did not put forward necessary expert evi- dence. It was not established that alleged negligence caused dam- ages claimed in action. Defen- dant physicians' expert evidence was compelling evidence that de- fendant physicians met standard of care. Even if plaintiff 's expert evidence regarding drug were ac- cepted, plaintiff 's claim failed in that he did not demonstrate that different decisions would have been made upon different disclo- sure. Plaintiff 's evidence and evi- dence of plaintiff 's expert did not fulfill criteria for successful clam based on lack of informed con- sent. Plaintiff expressly admitted that prescription filled at hospital pharmacy was for correct drug in correct dose for correct duration, and caused no harm and it was unsustainable for him to suggest that the hospital or its in-house pharmacy breached some duty in filling that very prescription. Even if there were duty on phar- macies to obtain informed con- sent, plaintiff did not established necessary elements of successful claim. Hirchberg v. Branson Drug Store (Aug. 2, 2016, Ont. S.C.J., W. Matheson J., CV-1300489759) 270 A.C.W.S. (3d) 210. Real Property GENERAL Action for latent defect and fraudulent misrepresentation was dismissed In 1983, defendants purchased subject property, including bun- galow with partially finished basement. In 1994, defendants installed sub–f loor throughout most of basement was installed, added bedroom, installed bath- room and home office was framed in. Defendants also contracted for construction of wooden deck at rear of house in 1994. It was likely that carpet in basement recreation room became wet from time to time from mid–90's to 2002. In 2002, defendants had exterior drainage work done to fix water problem. Trench around perimeter had membrane applied to exterior walls and discharged water into stone bed that contained porous O–ring buried below ground. In 2004, defendants installed new carpeting in two of base- ment rooms. Defendants resided on property until they sold it to plaintiffs in October 2011. Soon after their purchase, plaintiffs discovered mold and water dam- age in home. Plaintiffs replaced perimeter drainage system and repaired rear deck. Plaintiffs brought action for latent defect and fraudulent misrepresenta- tion. Action dismissed. Plain- tiffs did not conduct inspection of property prior to closing al- though they had opportunity to do so. Neither water leakage or mold contamination were vis- ible to plaintiffs before closing. O–ring running along outside of foundation walls was buried and clearly not visible for inspec- tion. Water leakage and mold contamination issues are latent defects. They were not visible on ordinary inspection. Status of O– ring could only be determined by excavating test holes which were then filled with water. Mold con- tamination only became visible as and when drywall, brick and carpet was removed. Water leak- age in basement was likely caused by fact that exterior O–ring was not fully or properly function- ing. Defendants were ignorant of water drainage/leakage and mold contamination issues any- where in or around house. They acted at all times consistent with belief that water leakage issues were remedied by work done in 2002. Mold only became visible as carpet, drywall and brick were remove; this was not case of con- cealment. There was no evidence from which it could reasonably be inferred that defendants were aware of or were wilfully blind to mold on main f loor or attic, which was discovered by carpen- ter after comprehensive search. Brown v. Cassidy (Aug. 29, 2016, Ont. S.C.J., R. Raikes J., 7162/13) 270 A.C.W.S. (3d) 219. Ontario Criminal Cases Charter of Rights ENFORCEMENT OF RIGHTS Society's interest in adjudication on merits strongly favoured admission of evidence Officer observed car street rac- ing and pursued it to dead-end street. Accused was seen in dis- tance walking away from car. Backup officers engaged in inves- tigative detention and performed pat-down search of accused's pockets that revealed keys to car. Accused was eventually arrested for careless driving and pursuant to outstanding warrants. Police used keys to search car and found loaded handgun. Accused was charged with firearms-related offences. Trial judge found that while police did not comply with duties under s. 10 of Canadian Charter of Rights and Freedoms, there were no breaches of ss. 8 and 9, and that gun evidence should not be excluded. Trial judge found that firearm would have inevita- bly had been discovered regard- less of any breaches of s. 10(a) or (b). Accused was convicted. Accused appealed. Appeal dis- missed. There was no error in trial judge's conclusion regarding s. 10 breaches or in his analysis that, had there been s. 8 breach, hand- gun should not have been exclud- ed. Any breach by police was not deliberate and accused had very limited privacy interest in vehicle that he did not own and had ap- parently abandoned. Society's interest in adjudication on merits strongly favoured admission. R. v. Ellis (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauw- ers J.A., and C.W. Hourigan J.A., CA C57843) Decisions at 106 W.C.B. (2d) 674 and 106 W.C.B. (2d) 779 were affirmed. 132 W.C.B. (2d) 226. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Trial judge erred in holding that defence had onus to establish honest belief defence Accused was found in marijuana grow operation. Accused claimed his boss had licence to operate marijuana operation. Boss had licence for another nearby loca- tion, but did not have licence to grow marijuana at location at issue. Accused was convicted of unlawfully producing marijuana and possession of marijuana for purposes of trafficking. Accused appealed. Appeal allowed. Trial judge erred in law in holding that defence had onus to estab- lish honest belief defence, and was wrong to place any onus on accused and to hold that de- fence could only be made out by evidence that accused had seen licence. Trial judge convicted on basis that accused aided and abetted his boss in cultivation of marijuana, and focused not on whether accused was licensed to cultivate marijuana, but rather on his belief that his boss was li- censed to cultivate marijuana. Trial judge may or may not have rejected honest belief defence. R. v. Johnson (Aug. 18, 2016, Ont. C.A., Doherty J.A., K.M. van Rensburg J.A., and L.B. Roberts J.A., CA C59776) 132 W.C.B. (2d) 239. Evidence ADMISSIBILITY Trial judge erred in excluding accused's exculpatory statements Police attended accused's home after complainant, accused's for- mer domestic partner, called 9-1- 1. First officer to arrive located and spoke with accused and in re- sponse to one of officer's questions accused indicated that no threats or assaults had occurred. At trial, Crown tendered accused's ut- terances through testimony of officer to whom he had spoken and took position that whole of statements was before court for consideration. Trial judge, how- ever, held that utterances were inadmissible and could not be considered then convicted ac- cused of assault and two counts of failure to comply with proba- tion order. Accused appealed his conviction with main focus con- cerning applicability of curative proviso where exculpatory state- ments made by accused are erro- neously excluded at trial. Appeal allowed; convictions quashed. Curative proviso could not be applied in this case. Accused's statements, which were adduced by Crown as part of its case and conceded by accused to be volun- tary, were admissible, regardless of whether they were inculpatory or exculpatory. Court could not say that, without error, verdict in this case necessarily would have been same. Error was not mi- nor or trivial in that convictions turned on trial judge's acceptance of credibility and reliability of complainant's evidence which was left uncontested by other evidence because of trial judge's error in excluding accused's ex- culpatory statements. It was not possible to speculate what weight trial judge might have given to accused's statements considered together with complainant's tes- timony and rest of Crown's case. Crown's case against accused was not overwhelming but largely depended on credibility and reli- ability of complainant's evidence which had serious issues includ- ing numerous inconsistencies in her evidence, even as to how assault occurred, question of her motive to fabricate her evidence, and delay in her complaint about accused to police. R. v. Perkins (Jul. 22, 2016, Ont. C.A., E.A. Cronk J.A., R.G. Juriansz J.A., and L.B. Rob- erts J.A., CA C57579) 132 W.C.B. (2d) 243. Murder CONSTRUCTIVE MURDER Evidence did not provide for reasonable inferences of unlawful confinement Two accused killed complainant after he took them out for test drive in his truck. Accused were charged with first degree murder. Pre-charge conference was held with respect to final charge to jury. Crown took position that ev- idence permitted jury to conclude that complainant was unlawfully confined. Crown took position that unlawful confinement could be predicate offence for finding of constructive murder. Crown brought application to have jury consider constructive murder as route of liability to first degree pursuant to s. 231(5)(e) of Crimi- nal Code. Application dismissed. Evidence did not provide for air of reality supporting reasonable in- ferences of unlawful confinement in law. Evidence demonstrated that complainant voluntarily and willingly entered truck in order to conduct test drive with accused. There was no air of reality to any evidence to suggest otherwise. There was no direct or circum- stantial evidence of what actually occurred in moments leading up to killing of accused in truck. Per- son who is seated in moving truck is factually constrained from leav- ing vehicle, but that is not legal test for unlawful confinement. Not every killing in course of operat- ing moving motor vehicle invokes s. 231(5)(e) of Code. R. v. Millard (Jul. 20, 2016, Ont. S.C.J., A.J. Goodman J., 14-4348) 132 W.C.B. (2d) 261.

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